CONFIDENTIAL

OFFICE FOR THE PREVENTION OF HARASSMENT AND DISCRIMINATION

REPORT OF INVESTIGATION AND FINDINGS
Complainant:

, non-affiliate

Respondent:

Yann Hufnagel, UC Berkeley Assistant Coach -- Mens Basketball

Investigators:

Investigator 1: Will Mallari, OPHD Assistant Director/Deputy Title IX

Officer; Investigator 2: Elizabeth Rome, OPHD Complaint Resolution
Officer

Date of Report:

March 14 2016

Conclusion:

Finding of Policy Violation - Sexual Harassment

I.

Background and Reported Behavior

On July 7, 2015, an Associate Athletic Director (AAD) at UC Berkeley contacted the Office
for the Prevention of Harassment and Discrimination (OPHD) to report a potential sexual
harassment of a non-affiliate,
(the Complainant), by a member of UC
Berkeleys coaching staff, Yann Hufnagel (the Respondent). The AAD forwarded an email
Complaint originally sent to a Head Varsity Athletics Coach on July 6, 2015 which detailed
Complainants concerns about enduring frequent and recurrent sexual harassment from
Respondent in the course of her employment for

On August 12, 2015, OPHD outreached to Complainant. Complainant responded within 24 hours
and offered to discuss Complainants concerns via telephone
After a series of scheduling emails, Complainant agreed to come in for an
in-person interview on August 25, 2015
On August 25, 2015, Complainant met with OPHD and reported that
Respondent had sexually harassed her.
Specifically, it was reported that:

Complainant was a
who met informally with coaches,
including Respondent, as part of her job. Respondent was the unofficial designee
of UC Berkeleys Mens Basketball team regarding communications with the
press surrounding
Over a period of time from November 2014 through May 2015, Complainant
received sexually harassing communications from Respondent on a bi-weekly
1

II.

basis in response to Complainants attempts to communicate with Respondent for

professional purposes.
On one occasion, prior to February 23, 2015, Respondent asked Complainant to
drive him home after Respondent had been drinking and then he propositioned her
for sex once she had driven her car into his buildings garage and Respondent had
closed the garage door after itusing a remote control in his possession.
After Complainant refused Respondents sexual advances, Respondent ceased
providing
information to Complainant and as Respondent was the
singular source for obtaining information pertinent to Complainants specific
assignment at
Complainant was no longer able to perform her job and
was let go.

Interim Measures

The need for interim measures was evaluated. No interim measures were deemed necessary or
appropriate in this case; and none were taken.
III.

Jurisdiction

The Office for the Prevention of Harassment and Discrimination has campus-wide responsibility
for responding to sex discrimination complaints, including sexual violence and sexual
harassment, and implementation of the University of California Sexual Harassment and Sexual
Violence Policy, which applies to the investigation and resolution of complaints against staff.
IV.

Applicable Policy

The University of California Sexual Harassment and Sexual Violence Policy 1 defines sexual
harassment as:
[U]nwelcome sexual advances, requests for sexual favors, and other verbal,
nonverbal, or physical conduct of a sexual nature. Sexual harassment is conduct
that explicitly or implicitly affects a persons employment or interferes with a
persons work or creates an environment such that a reasonable person would
find the conduct intimidating, hostile, or offensive.
The policy continues:
Sexual harassment may include incidents between any members of the University
community, including faculty and other academic appointees, staff, student
employees, students, coaches, residents, interns, and non-student or non-employee
participants in University programs (e.g., vendors, contractors, visitors, and
patients). Sexual harassment may occur in hierarchical relationships, between
peers, or between individuals of the same or opposite sex. To determine whether
The University of California Sexual Harassment and Sexual Violence Policy issued on February 25, 2014 is the
version applicable to this case as it was the policy in effect at all times relevant to the facts.

the reported conduct constitutes sexual harassment, consideration shall be given

to the record of the conduct as a whole and to the totality of the circumstances,
including the context in which the conduct occurred.
V.

Summary Findings

Based upon the evidence, OPHD made a finding of responsibility against Respondent for the
reported behavior, in violation of the UC Sexual Harassment and Sexual Violence Policy. A
detailed discussion of the finding is included in Sections VII and VIII.
VI.

The Investigation
A. Complainants Statement

On August 12, 2015, Investigator 1 outreached to Complainant. Complainant responded within

24 hours and they initially discussed speaking about Complainants concerns via telephone

they ultimately arranged to meet in

person on August 25, 2015. On August 25, 2015, Investigator 1 met with Complainant at OPHD
and she provided the following statement. At that time, Complainant was a non-affiliate

Complainant said, As a
I meet informally with coaches. For stories
pertaining to UC Berkeley Mens Basketball, Complainant said she occasionally texted or
tweeted messages to Respondent requesting to meet him for coffee in order to gather
information. Complainant said Respondent would frequently turn the text conversations into
sexual innuendos. Complainant noted Respondent was her only source of information and
asserted, He used his power. Complainant said she typically deflected Respondents sexual
innuendos with humor, but was not encouraging. Complainant recalled the unwelcome
interactions with Respondent beginning in November 2014 and continuing through May 2015.
Complainant estimated that, 90 percent of [the] harassment [was] via text, and occurred
approximately once every two weeks. Complainant also described an in-person incident that
occurred in the parking garage of Respondents residence, as detailed below.

Complainant recalled her first interaction with Respondent was during a telephone call facilitated
by Complainants boss who connected Complainant with Respondent as a resource.
Complainant said the call lasted about five minutes and Respondent was not inappropriate.
Complainant said the first time Respondent was flirtatious or inappropriate was in midNovember 2014 about two weeks after their introductory telephone call. Complainant recalled
telling
her boss about Respondents behavior shortly after it happened,
and that both of them were supportive of her.
Complainant recalled an in-person incident involving Respondent occurring sometime prior to
February 23, 2015. Complainant said she had been attempting to meet with Respondent for
coffee; and Complainant attended a UC Berkeley Mens Basketball game after which
Respondent indicated he would be available for coffee. Complainant recalled waiting for an hour
and a half after the game while Respondent was in a meeting. She said at about 11:30 p.m.,
Respondent finished the meeting and told Complainant, Were going to a bar. Complainant
said she wanted to find a coffee shop, but Respondent insisted on a bar; and Complainant
suggested Jupiter because it had food too. Complainant recalled that other people met
Complainant and Respondent there including
Complainant said
told her that Respondent hit on
friend that night.
Complainant said that Respondent drank one or two beers during the two hours they met at
Jupiter, after which Respondent told Complainant he was too drunk to drive home and insisted
that she drive him to his residence. Complainant described that she told him no and suggested
he take a taxi, but Respondent was insistent and Complainant ultimately acquiesced.
Complainant recalled driving Respondent to his apartment
a street
corner she described as being busy. Complainant said Respondent opened his apartment
buildings community parking garage for Complainant to drive her car into. Complainant said
she did drive into the garage because there was no place on the street to pull over. Complainant
said, once in the garage, Respondent directed her to park in a designated spotan elevatoroperated lift spot which would have suspended her car above the ground. Complainant said she
did not park in the spot and felt Respondent was attempting to control her ability to leave. She
recalled telling Respondent that she was just going to turn around; to which Respondent
responded, Youre coming up. Complainant said she said, No. Im going to leave now, but
Respondent kept insisting. Complainant said she asked Respondent, Are you thinking that Im
going to have sex with you? to which Respondent said, Yes. Complainant recalled telling
Respondent, Not going to happen
you and I are professional colleagues
not interested in you. Complainant noted that at that point the garage door was closed behind
them with her car inside and Respondent indicated that he did not intend to let her out of the
garage. Complainant recalled that she felt scared and ordered Respondent, Let me the fuck out
4

of here. She recalled Respondent talked about oral sex, [Complainant] giving him oral sex.
Complainant estimated remaining in the garage with Respondent for about 15 minutes. During
that time, Complainant recalled being in the car for most of the time and Respondent being out of
the car for most of the time. Complainant said Respondent did not touch her on that occasion or
any other occasion.
Complainant said that on March 17, 2015, Complainant requested a coffee meeting with
Respondent and during electronic communications to set up the same, Respondent made sexual
innuendos to Complainant implying, in Complainants words, Come have a three-way with me
and

Complainant said that Respondents texts in regards to scheduling a coffee meeting evidence
Respondents sexually suggestive references to his apartment, and specifically to his bed and
couch. Complainant declined and re-directed Respondents sexual innuendos.
Complainant asserted that on March 23, 2015, Respondent provided Complainant with
misinformation about
Over an electronic exchange, Complainant
asked Respondent if a specific
Complainant indicated that she then reported that information
in the course of her employment with
Complainant said she later learned that
Respondent had told other reporters that
Complainant
confronted Respondent and she recalled Respondent admitting that
but Respondent insisting, I was telling everyone the same thing.
Complainant believes Respondent provided her with this misinformation as retribution for
declining his sexual advances.
Complainant reported direct messaging
(Witness 1) on Twitter on May 22, 2015 and requesting to talk. Complainant
said Witness 1 called her on May 23, 2015 at which time she told him that she experienced
sexual harassment from [Respondent]. Complainant recalled that Witness 1 cut her off and said,
Im so angry. Complainant recalled Witness 1 responding to Complainants report stating, I
take this very seriously, and asserted his intention to talk to [Respondent] right away.
Complainant said that Witness 1 instructed Complainant, Follow-up with me in a couple of
days. Complainant said she did not have the opportunity to detail the information to Witness 1
at that time.
Complainant recalled sending a follow-up message to Witness 1 on May 25, 2015 and Witness 1
indicating, Were meeting in the morning. Complainant characterized her attempts to follow
up with Witness 1 regarding her initial report as unsuccessful. Complainant said that on May 26,
2015, she received a text from Respondent via Twitter stating, I need to call you. What is your
phone number? Complainant said, [Respondent] tried to take advantage of the power
imbalance. Complainant recalled that she told Witness 1 about the contact from Respondent and
asked him if she should talk to Respondent. Complainant said, in response, Witness 1 said,
Thats totally your choice.
Complainant said that on July 5, 2015, she contacted Witness 1 and asked for his email address
in order to provide him with the text exchanges between Complainant and Respondent. Witness
5

1 provided his email address to Complainant; and she emailed screenshots of the texts to Witness
1.

B. Witness 1 Statement
Investigator 1 interviewed Witness 1 at OPHD on October 23, 2015. Witness 1 was
at the time of the reported incidents.
Complainant provided Witness 1s name as a potential witnessnoting that she had initially
reported her concerns about Respondents conduct to him. Witness 1 provided the following
statement.
Witness 1 said that he never dealt with Complainant regarding media. Witness 1 recalled that
Complainant called him in May 2015 and said, I want to talk to you about one of your assistant
coaches. Witness 1 confirmed that Complainant initially contacted him on Twitter and he sent
her his telephone number. Witness 1 said he had a brief discussion with Complainant during the
telephone call; but he denied that she provided any details or described anything as constituting
sexual harassment. Witness 1 recalled Complainant telling him that she went to Respondents
house, she drove Respondent home, and Respondent only had two drinks. Witness 1 said
Complainant did not elaborate further. Witness 1 recalled asking Complainant if she felt
mistreated. Witness 1 said he did not recall Complainant asserting that she did feel mistreated
and he told Complainant, Ill have [Respondent] call you. Witness 1 said that Complainant
never indicated that a call from Respondent to address her concerns would not be welcome.
Witness 1 recalled telling Complainant, Proceed how you need to proceed, and left it at that.
Witness 1 said he followed up with Respondent to see if he had called Complainant. Witness 1
recalled that Respondent told him he had left Complainant a message. Witness 1 recalled that his
last communication with Complainant was by email in which he asked her, How do you want
me to proceed? and Complainant never responded. Witness 1 said that he did not have any
further conversations with Respondent or the Athletics Department staff about the matter.
Witness 1 said that he has not received any other complaints about Respondent.

C. Respondents Statement
Investigator 1 met with Respondent at OPHD on October 23, 2015. At the outset of the meeting,
Investigator 1 provided Respondent with a statement of the allegations, a copy of the University
of Californias Sexual Harassment and Sexual Violence Policy, an overview of OPHDs process,
and information about the office of record. At that time, Respondent was an assistant coach for
UC Berkeleys Mens Basketball team. He provided the following statement.
Respondent said that he has been an assistant coach with UC Berkeleys Mens Basketball team
since May 2014. Respondent recalled Complainant reaching out initially to him by either
telephone or text when he first started in that role. Respondent said that Complainant worked for
and it was her job to get information (e.g.,
information) from the Mens
Basketball teams coaching staff. Respondent recalled that during his early interactions with
Complainant he was of the impression that Complainant was professional.

Respondent recalled going to Jupiterpossibly after the Arizona game in Januarywith

2
Complainant,
and
friend. Respondent stated
Respondent said that a few days before the game, he had asked Complainant
via text message if she wanted to go out after the game. Respondent acknowledged that his
invitation was a sexual advance. Respondent said, In the back of my mind I was like
obviously [Complainant]s willing. Investigator 1 asked if Respondent believed he was asking
out Complainant at that point. Respondent replied, Yes, and asserted believing that there was,
1000% acceptance on her part.
Respondent recalled that Complainant was waiting for him in the stairwell after the game.
Respondent could not recall if he and Complainant walked or drove to Jupiter, but said that
Complainant agreed to go. Respondent said that
friend were at Jupiter and
Respondent was not sure if Complainant was aware that they would be there. Respondent said he
and Complainant were at Jupiter for about an hour. Respondent said that he did not drink at
Jupiter because he drove. Respondent recalled that Complainant drank tea and thinking in the
back of his mind that she was the lamest girl ever. Respondent said that he drove Complainant
from Jupiter to his apartment
and that they were at the apartment
building briefly. Respondent said that he asked Complainant if she wanted to come upstairs and
Investigator 1 asked Respondent if he would be okay with Investigator 1 contacting
Respondent stated that
he was okay with Investigator 1 doing so. Investigator 1 did not contact or interview
in the course of the
investigation as there was no suggestion that
would be able to provide any new information relevant to
resolving the matter in issue.

she said no. Respondent said that he then drove her back to her car, parked at a lot on UC
Berkeleys campus between Channing and Haste on Ellsworth. Respondent asserted that the only
time he ever spent any time with Complainant was on the Jupiter night. Respondent said that
after that he realized that she was a total ditz and not a good fit.
Respondent said that the only text he could remember was the text conversation in which he
referenced
Respondent asserted a belief that
. Respondent said that he thought the
related text was sent
after the Jupiter night when, [Complainant] asked me out for coffee, I believe. Respondent
said, I said okay. Only if [
can come. Of the
related text, Respondent
acknowledged, Inappropriate? Yes. Sexual harassment? No. Investigator 1 asked Respondent
why he described the text as inappropriate. Respondent responded, Because as a coach there
should be no sexual undertones at all.
Investigator 1 provided details of Complainants statement to Respondent and asked him if he
had any comments in response. Respondent said that he and Complainant did not have any
discussion about where they would go after the game and did not discuss coffee versus a bar.
Respondent said that he did not remember drinking at Jupiter and would be ashamed if he had
because, normally, he would not drive if he had been drinking and Respondent did remember
driving. Respondent denied that he and Complainant had any conversation about who would
drive. Again, Respondent specifically recalled driving that night and parking his car in the
elevated parking stall in his apartment buildingstating that there is a specific way to maneuver
his car into his stall. Further, Respondent said he would never have allowed Complainant to
drive his car
Respondent did recall that Complainant was with him when he positioned his car to park it in the
elevated parking spot and tried to park it there when Complainant asked what he was doing.
Respondent said, at that point, he suggested that he and Complainant go upstairs. Respondent
explained, With all candor, I was trying to trick her into going upstairs. Investigator 1 asked
him if he had sexual or romantic intentions at that point with respect to Complainant; and
Respondent replied, Yes. Respondent acknowledged that after they had a conversation about
going up to his apartment, he asked again and it was possible that during that conversation
Complainant asked Respondent whether he thought they were going to have sex and Respondent
replied affirmatively.
Respondent said that Complaint had exited his car while he maneuvered it within the garage, but
that he did not end up parking on the lift. She then returned to the vehicle. Respondent said it
was possible that Complainant said, [L]ets get the fuck out of here, and that is when he drove
her back to her own car. Respondent estimated that he and Complainant were in the parking
garage for an amount of time closer to five minutesnot fifteen minutes. Respondent explained
that a clicker is needed to get into the parking garage of his residence and he keeps the clicker in
his carhe was 99 percent sure of this. Respondent said that his car would have been parked
under Haas pavilion on that night and there was only a slim possibility that he had stopped by his
car to get the clicker, if they took Complainants car, as she reported.

Respondent continued and said that he recalled being in Complainants car at some point because
he could remember that her car smelled really bad. Respondent said he could not recall exactly
when he was in Complainants car, but did not think the car was moving at the time and thought
maybe he had gotten into her car when he dropped her off.
Investigator 1 showed Respondent the screenshots of the text exchange on March 17, 2015 as
provided to OPHD by Complainant. Respondent reviewed the images and acknowledged that he
authored the texts to Complainant. Investigator 1 specifically asked him to respond to the text
which states, Its only real when you are in the apartment with me and
. Respondent
said the text was inappropriate, but declined to characterize it as sexual harassment and described
such a text as being indicative of the relationship he had with Complainanta relationship he
further described as being playful. Respondent conceded that the text referring to
was
meant as an innuendo to have a three-way. Respondent said that the innuendo was a joke
because he would never have a three-way with
Respondent asserted that Complainant
never told him to stop; and he noted that she responded to the specific text conversation about
with three smiley faces.
Respondent denied that he was less helpful to Complainant about supplying information to
Complainant after the mid-March 2015 text exchange; and he cited as an example the fact that
she called to interview him on a Thursday in April before the Final Four. Respondent said that
the April interview lasted over an hour and they had a good conversation. Respondent further
asserted that he and Complainant had several interactions over the telephone and by text during
which there were no date requests or innuendos made.
In regards to Complainants assertion about Respondent intentionally providing her with
misinformation, Respondent stated that information is fluid and it changes. Respondent
acknowledged telling Complainant that
, but Respondent
explained that he was under Witness 1s orders not to tell anyone in the media about the visit.
Respondent said he told no less than ten other reporters the same information about
that he told to Complainant. Respondent said he told
on the telephone that
; and Respondent stated he was okay with Investigator 1 contacting
to confirm this
information. Respondent asserted that even if he did mislead Complainant with the
information, it was not related to the fact that Complainant turned down his sexual advances.
Respondent said that it is part of his job to mislead and redirect media.
Respondent recalled that on May 22, 2015, Complainant texted him to ask what was happening
Respondent said he had seen on a message board that
and responded to Complainants text with the word,
Respondent said that such
information was incredibly damaging to UC Berkeley and Respondent himself, and Respondent
would not want that information getting out. Respondent showed the Investigator a post
published on
Cal message board stating, From Cal BB staff member,
Respondent stated he received a screenshot from Witness 1 asking him
about the source of the information. Respondent then called Complainant and told her that he
found her actions very unprofessional. Respondent said that after he read [Complainant] the riot
act, he deleted her telephone number and told her, take [the post] down and never call me
again.
9

Respondent acknowledged that he messaged Complainant via Twitter on May 26, 2015.
Respondent thought that was likely when Witness 1 first came to him to reach out to
Complainant as she had told Witness 1 that she was threatening to go to the newspapers.
Respondent said that his intent in contacting Complainant on that date was to apologize, but
Complainant never responded.
Respondent explained that, in his understanding,
has nothing to do with UC
Berkeley. Rather, he understood that
issued Complainant a credential that allowed
her media access at UC Berkeley. Respondent said that he would never have the types of
conversations that he had with Complainant with a Cal staff member.
Respondent said he had a gut feeling that Complainant was trying to
He offered that as a motive for Complainant to
willingly engage with him, beyond soliciting
information. Respondent also offered,
I can say with candor that I never touched [Complainant]. Respondent questioned whether he
ever even shook her hand.
On October 24, 2015, Respondent emailed Investigator 1 and wrote, in relevant part, [G]iven
[Complainant]s previous
coupled with no clear indication whatsoever from her to stop the behavior, 3 it would be,
truthfully, almost impossible to conclude that these types of locker room messages were
unwanted. Further, Respondent asserts the
information he provided to Complainant
regarding
was off the record.
Respondent provided several photographs of the parking garage at his residence and screenshots
of his text messages to Complainant and
as attachments to the October 24, 2015 email.
Respondent sent Investigator 1 another email on October 25, 2015 and submitted additional
information to the effect that he provided the same information as he provided to or withheld
from Complainant as he provided to or withheld from
Respondent provided screenshots of his text messages to
as
attachments to the October 25, 2015 email. In addition, Respondent provided links to
and
biography on
website and a March 23, 2015 article about
written
by
and
and published on
D. Complainant Second Statement
On January 8 2016, Investigator 2 met with Complainant at OPHD, who provided the following
additional statement. Investigator 2 explained that the purpose of the follow-up meeting was to
address some inconsistencies and collect some additional information. Investigator 2 asked
Complainant to clarify who drove whose car into Respondents parking garage on the Jupiter
night in January 2015. Complainant was adamant100% positivethat she had driven her
car with Respondent as a passenger into Respondents parking garage on that night. Complainant
recalled that she had just gotten some garlic shots 4 in her car, she warned Respondent that they
might smell, and he said he couldnt smell them. Complainant stated that the car she had at that
(Emphasis in original).
A garlic shot is touted as an immunity booster. It consists of mashed garlic, lemon juice and cayenne pepper and
is to be taken by mouth several times a day at the first sign of cold or flu symptoms.

3
4

10

time was very similar to Respondents

. Investigator 2 asked if Complainant
recalled whether or not Respondent had the garage fob on him, they stopped to get it out of
Respondents car, or something else. Complainant recalled stopping by Respondents car
which was parked in a garage on Channing either prior to or after going to Jupiter. Complainant
was not sure if he got the fob out of the car at that time, but she recalled making the stop.
Investigator 2 asked whether Complainant was certain Respondent consumed alcohol at Jupiter
on the night of the parking garage incident. Complainant reiterated that she was positive that
Respondent drank two beers at the restaurant and again noted that she did not consume any
alcohol that night.
Investigator 2 asked Complainant about
and the significance, if any, she perceived his
image or name having as related to the electronic evidence in the case.

Complainant asserted a belief that Respondent used the text messages about and
photographs of
to convey to Complainant a message that Respondent owned
and Complainant should not try to have a good relationship with
Complainant believed
that when Respondent mentioned
or sent a picture depicting
to Complainant
that Respondent was trying to tell her that he still had the power to control the media messages
even if she was trying to circumnavigate Respondent and go to
for information about the

Complainant provided that it is not unusual for

writers such as herself to build
relationships with
to get more information, but that it is sometimes difficult to get
information from
Complainant stated that she first met her now-friend
at Jupiter on the night of the parking
garage incident. Complainant provided that
is a mutual friend of Complainants and
Respondents. Complainant stated that in working for
she was paid
.

Complainant stated that in this way, she felt that Respondent knew he had all the power in the
relationship. In Complainants view, Respondent had the power to scoop a story to
based on which media outlet he chose to favor; and Complainant believed Respondent
would withhold information or lie because she rebuffed his sexual advances.
to
Investigator 2 asked Complainant when she began approaching other people on
collect information. Complainant stated that she could not put an exact date on it because on
such an assigned beat it is routine for a writer to build relationships with the
Investigator 2 asked Complainant if she could recall any specific communications with
Respondent between March 23 and May 21, 2015. Complainant showed Investigator 2 some
additional electronic correspondence from Respondent during that time period concerning her
11

ability to get into the high school state championships. Investigator 2 asked her if she was willing
to provide those communications to OPHD and she stated that she was.
Investigator 2 asked about the
information and she stated that Respondent never
communicated to her in advance of her publishing the
piece that the information he
provided to her about the same was off-the-record information. Complainant asserted that in the
industry there is an understandinga default assumptionthat if Respondents role is talking
the media about sports
information, any
information he provides is for
publication unless otherwise specified. Complainant recalled receiving a telephone call from
Respondent on May 22, 2015; Respondent was yelling and asking her, What the fuck were you
thinking? Complainant stated that for the first part of the telephone call she did not know what
Respondent was so upset about, but then he said, A source close to the
At that point,
Complainant realized that Respondent was calling about the
piece that she had just
published. Complainant described Respondent as a person who can change emotion on a dime.
Complainant stated Respondents demeanor was unpredictablesometimes he was very sweet
and professional, other times not.
Investigator 2 asked Complainant about an hour-long telephone conversation with Respondent in
April 2015. Complainant responded that she interviewed Respondent in April 2015 for a
sunshine pumping piece
was putting together on
Complainant opined that it was in Respondents interest to participate
in the interview for the piece
Complainant stated that by the time the piece was slated for publication, Complainants
supervisor was frustrated with Respondents behavior towards Complainant and decided not to
publish the portion about Respondent.
Investigator 2 asked Complainant what her assigned beat was at the outset of her employment
with
Complainant stated it was UC Berkeley Mens Basketball reporting and
as well as some additional pieces focusing on other sports teams she was interested in.

Complainant stated that her editors were really supportive and tried to make it work, but she
did not know how to make it work, I had no idea where to go. Complainant explained that to
attempt to do her job without Respondents help or access to Respondent would have required
her to have working relationships with multiple
which was untenable. Complainant stated that at the outset, someone at
gave
her Respondents telephone number and told her that he was going to be her contact.
Complainant asserted that covering UC Berkeley Mens Basketball
was harder than a
sport like football because there were fewer assistant coaches who could potentially provide
information on
When talking about trying to get the information she needed to write
about Mens Basketball
Complainant stated that it was not really possible to get the
needed information from anyone other than Respondent.
Complainant stated that she felt very beholden to Respondent because of the dynamic of
Respondent having the
information and knowing that Complainant needed that
12

information. Complainant stated that she felt Respondent tried to exploit that dynamic.
Complainant stated that Respondents behavior pattern was a problem for her. Complainant
acknowledged that she played along with Respondents behavior because she did not see a viable
alternative that would also allow her to do her job. Complainant stated that she never would have
allowed another man in her life to treat her the way Respondent treated her. Complainant stated
that she knew she would report him at some point; and she described the May 22, 2015
screaming telephone call from Respondent as the action that tipped the scales for her and led her
to report him. Complainant noted that she also knew at that point that she would not likely have
to see or encounter Respondent in person because she was in
Complainant stated that
at the point that she stopped working for

Investigator 2 asked about the person or persons who covered the UC Berkeley Mens Basketball
team
news prior to and after Complainants doing so. Complainant indicated that the
assigned reporters were both male, but disclosed that the UC Berkeley Mens Basketball
coaching staff did not have a very good relationship with her predecessor either due to a
difference of opinion regarding
Complainant provided her boss at
5
as a potential witness.
Complainant stated even after she reported her concerns to
Witness 1,
Respondent continued to try and exert power over her. Complainant showed Investigator 2 a
tweet from Respondent to Complainant on May 26, 2015 where he asks her to provide him with
her telephone number and saying that he need[ed] to speak with Complainant later that day.
Complainant stated that the tweet was worded so as to present his message as a demand, not an
option and was not sensitive to the matter at hand.
E. Documentary Evidence
Complainants email to Witness 1
On September 1, 2015, Complainant forwarded Investigator 1 a copy of the email she originally
sent to Witness 1 on July 5, 2015. The email states, in relevant part:
I wanted to continue our dialogue in regard to [Respondent]. I only briefly
touched upon the extent of his harassment of me in our two conversations
I want to be sure to do so particularly in light of something you said in our last
conversation. You told me that you take this very seriously, and that you were
hoping it was just an isolated incident.

OPHD did not contact

in the course of its investigation as information he could likely provide did
not appear immediately relevant to the matter under investigation or would be unnecessarily duplicative of
information already received from other sources.

13

I should have been clear at the time this was not an isolated incident.
Conversely, [Respondent]s harassment of me spanned a period of months, since
last October, until about a month and a half ago, when we first spoke about it.
He did not harass me on a daily basis. If I were to estimate the frequency, I would
say probably on a weekly basis, [Respondent] would make an
inappropriate/sexual/degrading comment to me, or we would have an extended
exchange during which he would make multiple such comments.
While most of the interaction that I term harassment occurred via text message
(several of which I will attach to this email for your reference [and she did attach
some screenshots of her text exchanges with Respondent]), I also had experiences
in-person with [Respondent] where he sexually propositioned me. I made it clear
that there was no mutual interest in any kind of relationship outside of a
professional one, and furthermore, that I was uncomfortable based on the
professional relationship that we presumably would both strive to create and
maintain. Here is what I feel is the biggest example of that:
I had requested repeatedly to meet [Respondent] for coffee, at the suggestion of
my boss, in order to discuss
He continually put off our meeting, but finally agreed to meet after a game. By
the time he got out of his meeting with you and the other coaches, it was well past
11 PM. I wasnt sure if we were still going to meet, but wanted to try to make it
happen because I hadnt been successful so far in getting him to have coffee with
me.
He told me that we were meeting his friend, and asked me where a good place
was. I suggested Jupiters, a place that serves food late
We went to Jupiters [Respondent] ordered a couple of beers I ordered a
green tea.
We met his friend and a friend of his friend, and stayed for a little over an hour.
At that point, [Respondent] insisted that I drive him back to his apartment and
said he was too drunk to drive. I didnt want to question that for safety reasons,
but just to let you know, hed only had two beersover the span of an hour and a
half. I did not at that time, and do not now, believe for a second that he was too
drunk to drive.
I was very clear that I planned to drop him off at his apartment. He said, Youre
coming in. I told him I was not coming in.
When we got to his apartment, which is at
, a busy
intersection, I couldnt pull over because even at that hour there was plenty of
fast-moving traffic. He opened his garage, and I drove in, thinking he had done so
14

because the traffic wouldnt have allowed me to simply stop on the street safely.
As soon as I drove in, the garage door closed behind me, and he motioned for me
to pull over into a spot but not just a normal spot, a spot where my car would
have been stacked on top of another car, and I would have needed assistance
(obviously) if I had wanted to leave and get my car down.
I want to highlight the way that [Respondent] was creating a situation in which he
would have had power over me he would have had the power to dictate if/when
I could leave, had I not first realized what was happening.
I told him that I did not need to pull my car into that spot. He told me I did, and
again informed me: Youre coming up. Notably, he never asked me, as a
question. He was asserting that I would come in to his apartment as a statement of
fact another attempt at establishing power.
He continued to insist that I come up to his apartment. He also explicitly sexually
propositioned me. I continued to decline, ask to leave. After about ten minutes, he
relented to open the garage door so that I could leave.
Complainants Text Messages
Complainant provided screen shots of text messages she exchanged with Respondent on dates
pertinent to Complainants allegations of sexual harassment. The relevant portions of the text
exchanges read:
Monday, February 23, 2015 11:58 a.m.
Complainant:

Hey[,] want to meet for coffee this week?

Respondent:

No. Lets plan on Vegas during the pac-12 tournament at the mgm!

Complainant:

Im not going[.] Berkeley this week. You have time[?]

Monday, February 23, 2015 3:01 p.m.

Complainant:

Honestly[,] I would just really like to meet up with you and catch up
Not in a bar or a casino. I know thats an insane thing to ask but do you
think we can manage it?

Respondent:

I like the casino bar.

Tuesday, March 17, 2015 12:35 a.m.

Complainant:
Respondent:

yes?
Yes[.]
15

Tuesday, March 17, 2015 4:09 p.m.

Complainant: Coffee soon [smiling emoticon]
Respondent:

Im only coming if [

comes too.

Complainant: You guys are so in love!

Respondent:

Thats my man. No [

no coffee.

Complainant:
Respondent:

I was?

Complainant: Thats when its real[.]

Respondent:

Its only real when youre in the apartment with me and [

when its real.

Thats

Complainant: Omg [three emoticons of a laughing until crying face][.]

Respondent:

[Emoticon of a smug/flirty face] Well do the coffee first

Complainant: So youre making coffee for the three of us[?]

Respondent:

The coffee will be at Starbucks.

Complainant: No apartment necessary[.]

Respondent:

For coffee, no.

Complainant: So youre making us food at your house?! Youre the best[.]

Respondent:

Funny. Really the only two places I am in my apartment are the bed and
the couch

Complainant: So youre saying you do all of your meal preparation in the living
room[?] Unconventional[,] [b]ut I guess it works!
Thursday, March 19, 2015 4:57 p.m.
Complainant: Thanks [Respondent][.] Would love to have coffee some time[.] Just
fyi[.] K [sic] cool[.]
Respondent:

[Photograph of
walking on the street and away from the camera]
Again only if he can come.
16

Thursday, March 19, 2015 8:08 p.m.

Complainant: Since when are you two bffs [sic][?]
Respondent:

Thats just my dude.

Complainant: Alright lets all have coffee[.] Also[,] [c]an you fill me in on what is
happening with
Respondent:

When the 3 of us are in the apartment, yah.

Complainant: Waiting on him[,]

Starbucks[.]
Respondent:

[Respondent] no.

Just let [
kno[w] when that [sic] gone [sic] be and Ill make sure
Im there. Nope.

Complainant: Star[.] Bucks[.]

Respondent:

Nope. After.

Complainant: After?
Respondent:

After we get done on the couch we can go downstairs, yah.

Complainant: You have a coffee maker on your couch Im assuming[?]

Respondent:

Nope[.] I aint [sic] got shit there[.]

Complainant:

Respondent:

Besides a couch n [sic] a bed in my spot which is really all I need

honestly[.]

Undated in screenshot, but immediately prior to a conversation on Monday, March 23,

2015
Complainant:
Respondent:

No.

Complainant: Literally no truth to that?

Respondent:

Im in [L.A.] We have no1 [sic] on campus today.

17

Monday, March 23, 2015 7:32 a.m.

Complainant: How come
Respondent:

is reporting that

He did. Last night.

Complainant: [Respondent] are you actually trying to make me look bad[?] You
understand exactly what you just did [a]nd theres no reason for it[.]
Respondent:

I was telling ever[y] 1 [sic] the same thing [n]ot just you[.] We werent
confirming anything.

Complainant: Youre playing games[.]

Friday, March 27, 2015 11:45 a.m.
Complainant: Hey [Respondent].
wont credential me and I would like to be able to
go to the
game tomorrow. Is there any way you can get me in?
Respondent:

Just buy a ticket. I think thats easy right?

Complainant: So youre unable to help?

Respondent:

[Photograph of Respondent and

directly into the camera]

with heads together looking

Complainant: Oh great Ill be sure to present that picture at the door tomorrow that
helps a lot[.]

Respondents Text Messages 6

Respondent provided (via email attachments on October 24, 2015 and October 25, 2015) screen
shots of text messages he exchanged with Complainant and
on dates pertinent to
Complainants allegations of sexual harassment. The relevant portions of the text exchanges
read:
March 23, 2015 4:51 p.m.
U [sic] dirty dog[.]
Respondent provided some screenshots of text messages that were not relevant to the issues in question; and
therefore, they were not considered. Those screenshots include: (1) messages between Respondent and
on
Saturday, January 24, 2015 at 11:04 p.m.; and (2) messages between Respondent and Complainant on Tuesday,
May 19, 2015 at various times.

18

Respondent:

What???
[Link to

Respondent:

and

March 23, 2015 article on

titled

[Witness 1].
Tell him I said hes a beast. And quote me[.] Why are u [sic] so quiet[?]
[F]irst time in your life[.]

Respondent:

The crazier thing is Ive been able to keep my migh [sic] shut for 4
months! [Two emoticons illustrating laughing until crying]. You beat me 2
that.

CRAZY. Amazed[.]
April 26, 2015 4:56 p.m.
[Respondent] [b]e real w[ith] me[.] U [sic] all heard from
Respondent:

Sup[?] No[.] I havent talked with

[sic][.] Im on that plane[.]

May 1, 2015 4:26 p.m.

Calls will come tonight[.] I think soon[.]
Respondent:

Man! [H]ere we go[.]

Respondent:

[F]or sure?

May 22, 2015 10:55 a.m.

Complainant: Whats happening with
Respondent:

Probably not much

Complainant: Ew[,] weird

19

or

in a few hours tho

Respondent:

If he gets past his

Complainant: Ah[,] so not a guarantee that he even will[.]

Respondent:

Thats right. Im lifting[.]

Complainant: Has he been to

Respondent:
Complainant: Ah okay. Have fun lifting. Thanks, talk soon.

Photographs
Respondent took and provided to Investigator 1 (via email attachment on October 24, 2015)
photographs of his car, parking garage entrance, garage space, garage door opener, and parking
space elevator fob. Respondents car is shown to be
. One photograph
depicts the display panel on the lift unit in Respondents parking garage. The photograph shows
the specific dimensions and weight limit programmed for space #20 as being 2,000 kg, 500 cm in
length, and 150 cm in height.
March 23, 2015
Respondent provided Investigator 1 with a link to

posting
Respondent provided (via email attachment on October 24, 2015) a screenshot of Complainants
posting on
regarding

20

VII.

Analysis and Findings of Fact

A. Standard of Evidence: Preponderance of the Evidence

In evaluating allegations of sexual harassment and sexual violence, the preponderance of the
evidence standard is used. Under this standard, individuals are presumed not to have engaged in
the alleged conduct unless a preponderance of the evidence supports a finding that the conduct
occurred. This preponderance of the evidence standard requires that the evidence supporting
each finding be more convincing than the evidence offered in opposition to it. In other words, the
alleged conduct must be more likely than not.
B. Fact Finding: Did Respondent behave as alleged?
Respondent admitted he engaged in the conduct Complainant alleged. Respondent acknowledged
making repeated sexual innuendos to Complainant via electronic communicationincluding
suggesting her participation in a three-way sexual encounter with him and
Respondent
offered that, at the time, he believed Complainant would be willing to have sex with him
. Further, Respondent recounted
trying to trick her into going up to his apartment to have sex. The Investigators also found
Complainants account credible that Respondent repeatedly insisted that she accompany him up
to his apartment, even after she declined and while she was closed into Respondents parking
garage and Respondent was in control of her ability to get out of the garage. Respondents own
admissions, together with Complainants credible account, demonstrate that it is more likely than
not that Respondent behaved as alleged.
C. Did the Alleged Behavior Violate the Policy?
According to the Policy, sexual harassment may include incidents between staff and nonemployee participants in University programs (e.g., visitors). Complainant had a legitimate
business purpose for interacting with Respondent in his capacity as a University representative.
Accordingly, the Policy applies to Respondents reported conduct.
A violation of the Policy occurs when each of the following elements are met: (1) unwelcome
conduct; (2) of a sexual nature; that is: (3) objectively intimidating, hostile, or offensive.
a. Respondents conduct was unwelcome.
Neither Complainants nor Respondents accounts of the in-person interactions includes
Complainant indicating a desire to or agreeing to engage in any sexual conduct with Respondent.
Complainant credibly asserts that on or about January 24, 2015, when she was in the parking
garage with Respondent, she clearly communicated to him that she was not going to have sex
with him,
, she was not interested in Respondent in that way, and they were
professional colleagues. Complainant stated that Respondent continued to insist that she come
upstairs, Complainant asked to be let out of the parking garage, and Respondent indicated to
Complainant that he did not intend to let her out of the parking garage. Complainant reported
feeling scared and demanding to be let out. Subsequently, Respondent made several and
21

repeated sexual innuendos by text message to Complainant. The sexual innuendos revolved
around Complainant participating in a three-way sexual encounter along with Respondent and
The text message evidence in response to Respondents innuendos is consistent with
Complainant stating that she typically deflected Respondents innuendos with humor, but was
not encouraging. Further, the text conversations bear out Respondent making sexual innuendos
and Complainant repeatedly trying to refocus the conversation back to meeting up for coffee at a
neutral location or collecting
information. Complainant described put[ting] up with
Respondents behavior as a means to an end when she believed there was not a good alternative
source for the information she needed in order to do her job. Despite Respondent attempting to
justify his conduct by asserting that there was no clear indication whatsoever from her to stop
the behavior, the facts show otherwise and it is clear that Respondents conduct was unwelcome
to Complainant.
b. Respondents conduct was of a sexual nature.
Respondents in-person and electronic communications with Complainant were sexual in nature.
Moreover, they constituted sexual advances as specifically proscribed by the Policy. When
discussing the in-person interaction between Respondent and Complainant in Respondents
parking garage on a night in late January 2015, Respondent told Investigator 1, With all candor,
I was trying to trick her into go upstairs. Respondent acknowledged harboring sexual or
romantic intentions at that point with respect to Complainant; and he communicated to her a
belief that they were going to have sex that night. Respondent acknowledged to Investigator 1
that he asked Complainant out that night and that his invitation was a sexual advance.
Respondent acknowledged to Investigator 1 that when he asked her to meet after the game he
believed that she was likely willing to have sex
. Complainants account of that night includes
Respondent verbally propositioning her for oral sex and repeatedly insisting that she come
upstairs to his apartment with him while she was in her car which was trapped inside of
Respondents parking garage at the time. While Respondents and Complainants versions of
whose car they drove into the parking garage and how long they were in the parking garage
differ, those discrepancies have little bearing on the facts relevant to the issue at hand.
Respondent agrees that he asked Complainant more than once to come upstairs, possibly told her
he believed they were going to have sex, and Complainant told him, No.
When Investigator 1 questioned Respondent about his communications with Complainant,
specifically the texts referencing
Respondent labeled the texts as inappropriate. When
asked to explain why he defined the texts as being inappropriate, Respondent directly
acknowledged the sexual nature of the texts to Complainant by stating, Because as a coach
[there] should be no sexual undertones at all. Respondent further acknowledged that the texts to
Complainant referencing
were meant to suggest that he and Complainant have a threeway sexual interaction with
While Respondent asserted that these types of
communications were in keeping with the playful nature of his relationship with Complainant
and that, for instance, the three-way innuendo was in jest, it is clear on these facts that
Respondents in-person and electronic conduct was of a sexual nature and was experienced as
such by Complainant.

22

c. Respondents conduct was objectively intimidating, hostile, or offensive.

In this case, Complainant related the first inappropriate or flirtatious communication from
Respondent to Complainant occurred in mid-November 2014approximately two weeks after
the two were introduced to one another as professional contacts. A more severe - and the only inperson - interaction occurred on or about January 24, 2015. During that incident, Complainant
felt physically confined by Respondent within Respondents parking garage. Respondents and
Complainants accounts both acknowledge Respondent asking more than once for Complainant
to come up to Respondents apartment and Respondent verbally acknowledging to Complainant
a belief that they were going to have sex. Complainant described feeling scared and
demanding that Respondent let her out of the garage as he had the fob to operate the garage door.
In mid-March 2015, Respondent acknowledged sending Complainant a series of text messages
containing sexual innuendos to participate in a three-way sexual encounter with Respondent and
. In late March 2015, Respondent againby virtue of the context of the previous text
messages in mid-March--proposed a three-way sexual encounter between Respondent,
and Complainant. He did this when he sent a picture of himself and
together and looking
into the camera in response to Complainant asking Respondent to get her access to a
championship game. Complainant credibly provided that Respondents inappropriate electronic
contacts continued on a bi-weekly basis until mid-May 2015 when Complainant reported
Respondent to Witness 1.
In this case, Respondents conduct was pervasive in that it continued over a six-month span and
consists of at least one severe incident in which Respondent caused Complainant to feel scared
and physically trapped in an enclosed space controlled by Respondent while he repeatedly
propositioned her for sex despite her refusals and declinations. In this way, Respondents
conduct was objectively intimidating, hostile, or offensiverepeatedly propositioning
Complainant for sex and, in some cases, suggesting that her participation in sex with Respondent
would grant her greater access to parts of the sports world in Respondents control. Further, to
show the objectively offensive nature of Respondents communications with Complainant,
Respondent stated to Investigator 1 that he would never have the types of conversations with a
Cal staff member that he had with Complainant.
VIII. Conclusion
Investigator 1 and Investigator 2 evaluated the record of the allegations as a whole and gave
consideration to the totality of the circumstances, including the context in which the alleged
behavior occurred. The evidence gathered was weighed by a preponderance of evidence
standard. It supports the conclusion that Respondent behaved in violation of the Sexual
Harassment and Sexual Violence Policy. OPHD refers this matter to the Intercollegiate Athletics
Department for appropriate disposition.

23